FRANCE Law and Practice Contributed by: Diane Bandon-Tourret and Agathe Clarac, LexCase
interpreted as meaning that the system established by that Directive does not preclude the application of other systems of contractual or non-contractual liability based on different grounds, such as liability for latent defects or fault (ECJ, judgment of 25 April 2002, González Sánchez , C-183/00, paragraph 31). It follows, according to the Court, that the victim of damage attributed to a defective product may bring an action for liability against the producer on the basis of the second of those provisions, if he/she establish - es that his/her damage results from a fault committed by the producer, such as keeping the product in cir - culation despite being aware of the defect or failing in his/her duty of care with regard to the risks presented by the product. Rouen Court of Appeal, Civil Chamber, 25 April 2024, No 23/03137 (on Referral From the First Civil Chamber of the Court of Cassation, 5 July 2023, No 22-18.914, FS-B), Case C-338/24 Sanofi Pasteur, Registered by the CJEU on 7 May 2024 The Rouen Court of Appeal referred to the CJEU questions relating to fault versus lack of safety, the ten-year time-limit and the three-year time-limit in the following terms. • Question 1: Article 13 of Directive 85/374/EEC of 25 July 1985, in its interpretation resulting from the judgment of 25 April 2002 ( Gonzalez Sanchez , C-183/00), according to which the victim of dam - age may rely on other contractual or non-contrac - tual liability regimes based on grounds different from that established by the Directive, to be inter - preted as meaning that the victim of a defective product may seek compensation from the producer for his/her loss or damage on the basis of the general system of fault-based liability by relying in particular on the fact that the product was kept in circulation, on a failure to fulfil his/her duty of care with regard to the risks presented by the product or, in general, on a safety defect in the product. • Question 2: Article 11 of Directive 85/374/EEC of 25 July 1985, according to which the rights con - ferred on the victim pursuant to the Directive lapse on expiry of a period of ten years from the date on which the product causing the damage was put into circulation, contrary to the provisions of Article
47 of the Charter of Fundamental Rights of the European Union in that it would deprive the victim suffering progressive damage caused by a defec - tive product of his/her right of access to a judge. • Question 3: Article 10 of Directive 85/374/EEC of 25 July 1985, which fixes as the starting point of the three-year limitation period “the date on which the claimant knew or ought to have known of the damage”, can be interpreted as running only from the day on which the full extent of the damage is known; in particular, by setting a consolidation date defined as the point at which the condition of the victim of the bodily injury is no longer evolving, so that in the case of an evolving pathology, the limi - tation period does not begin to run, and not from the day on which the injury definitely appeared, in connection with the defective product, regardless of its subsequent evolution. CJEU – Judgement of the Court, 26 March 2026 (C-338/24, LV v Sanofi Pasteur SA) The CJEU issued its preliminary ruling on the ques - tions raised by the Rouen Court of Appeal on 26 March 2026. Answer to question 1 the CJEU concurs with the reasoning adopted by the French Court of Cassation (Civil Division, First Cham - ber, 15 November 2023, No 22-21.178) and confirms that an action based on fault is admissible because the required faultful conduct differs from the defect defined in Article 6 of the Directive, in reference to the absence of safety that could legitimately be expected. In this case, the torts invoked consist of: • keeping a product on the market where the pro - ducer was aware of the safety defect; • a breach of the duty of care regarding the risks associated with the product; and • more broadly, “any other fault linked to the defect”. This therefore provides grounds for interpreting the fault as a breach of a regulatory obligation on the part of economic operators, particularly with regard to healthcare products. The classification of the infor - mation relating to the product in question, which con - stitutes an extrinsic defect, remains open.
141 CHAMBERS.COM
Powered by FlippingBook